(i)
|
Notice and Proxy Statement with respect to the Meeting describing proposals to be voted upon at the Meeting, the procedure for voting in person or by proxy at the Meeting and various other details related to the Meeting; and
|
(ii)
|
Proxy Card whereby holders of ordinary shares of the Company may vote at the Meeting without attending in person.
|
WIX.COM LTD
|
||
Date: August 17, 2015
|
/s/ Eitan Israeli
|
|
Name: Eitan Israeli
|
||
Title: VP & Legal Counsel
|
Exhibit
|
99.1 Notice and Proxy Statement with respect to the Company’s 2015 Annual General Meeting of Shareholders.
99.2 Proxy Card with respect to the Company’s 2015 Annual General Meeting of Shareholders.
|
Sincerely,
AVISHAI ABRAHAMI
Chairman of the Board of Directors
|
|
(1)
|
to re-elect Yuval Cohen and Roy Saar as Class II directors to serve until the 2018 annual meeting of shareholders;
|
|
(2)
|
to approve amendments to the Company’s Indemnification Agreement for directors and officers; and
|
|
(3)
|
to ratify the appointment and compensation of Kost, Forer, Gabbay & Kasierer, a member of Ernst & Young Global, as our independent registered public accounting firm for the year ending December 31, 2015; when this proposal is raised, you will also be invited to discuss our 2014 consolidated financial statements.
|
By Order of the Board of Directors,
AVISHAI ABRAHAMI
Chairman of the Board of Directors
|
|
(1)
|
to re-elect Yuval Cohen and Roy Saar as Class II directors to serve until the 2018 annual meeting of shareholders;
|
|
(2)
|
to approve amendments to the Company’s Indemnification Agreement for directors and officers; and
|
|
(3)
|
to ratify the appointment and compensation of Kost, Forer, Gabbay & Kasierer, a member of Ernst & Young Global, as our independent registered public accounting firm for the year ending December 31, 2015; when this proposal is raised, you will also be invited to discuss our 2014 consolidated financial statements.
|
Name of Beneficial Owner
|
Number of Shares
Beneficially Held (1)
|
Percentage of
Ownership (2)
|
||||||
Entities affiliated with Mangrove Capital Partners (3)
|
8,269,272 | 20.8 | % | |||||
Entities affiliated with Bessemer Venture Partners (4)
|
6,366,172 | 16.0 | % | |||||
FMR LLC (5)
|
3,766,733 | 9.5 | % | |||||
Entities affiliate with Steadfast Capital Management (6)
|
3,334,462 | 8.4 | % | |||||
All executive officers and directors as a group (13 persons) (7)
|
11,544,588 | 27.4 | % |
(1)
|
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission, or the SEC, and generally includes voting or investment power with respect to securities. Ordinary Shares relating to options currently exercisable or exercisable within 60 days of the date of this table, and to restricted share units (RSUs) that are exercisable within 60 days of the date of this table, are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person. Except as indicated by footnote, and subject to community property laws where applicable, the persons named in the table above have sole voting and investment power with respect to all shares shown as beneficially owned by them.
|
(2)
|
The percentages shown are based on 39,694,307 Ordinary Shares issued and outstanding as of August 13, 2015.
|
(3)
|
Based on a Schedule 13D filed by Mangrove II Investments Sarl on February 25, 2014 and other information available to us, shares beneficially owned consists of 8,110,689 shares held by Mangrove II Investments Sarl, 35,282 options to purchase shares held by Mangrove II Investments Sarl exercisable within 60 days of August 13, 2015, and 123,301 shares held by Mangrove Partners SCSp. Mangrove II Investments Sarl is a limited liability company incorporated and organized under the laws of Luxembourg. Mangrove II S.C.A. SICAR is the owner of 100% of the share capital of Mangrove II Investments Sarl. Mangrove II S.C.A. SICAR is a fund incorporated and organized under the laws of Luxembourg in the form of a partnership limited by shares and regulated by the Luxembourg CSSF (Commission de Surveillance du Secteur Financier). Mangrove II S.C.A. SICAR is managed by Mangrove II Management S.A., a limited liability company incorporated and organized under the laws of Luxembourg. The members of the board of directors of Mangrove II Management S.A. are Mark Tluszcz, Gerard Lopez and Hans-Jürgen Schmitz. Mangrove Capital Partners’ address is 31 Boulevard Joseph II, L-1840, Luxembourg.
|
(4)
|
Based on a Schedule 13G filed by Deer & Co. Ltd. on February 17, 2015 and other information available to us, consists of 5,459,956 shares held by Bessemer Venture Partners VII L.P. and 888,826 shares held by Bessemer Venture Partners VII Institutional L.P. (together, the “BVP Funds”) and 1,704 shares underlying RSUs and options to purchase 15,686 shares each beneficially owned by an entity affiliated with the BVP funds, each of which RSUs vest and options are exercisable within 60 days of August 13, 2015. Deer VII & Co. L.P is the general partner of the BVP Funds. Deer VII & Co. Ltd. is the general partner of Deer VII & Co. L.P. J. Edmund Colloton, David J. Cowan, Byron B. Deeter, Robert P. Goodman, Jeremy S. Levine and Robert M. Stavis are the directors of Deer VII & Co. Ltd. Investment and voting decisions with respect to the shares held by the BVP Funds are made by the directors acting as a committee and as such the directors may be deemed to be beneficial owners of the shares held by the BVP Funds. The address for the BVP Funds entities is 1865 Palmer Avenue, Suite 104, Larchmont, New York 10538. Bessemer Venture Partners’ address is 1865 Palmer Avenue, Suite 104, Larchmont, New York 10538.
|
(5)
|
This information is based upon a Schedule 13G filed by FMR LLC (“FMR”), with the SEC on February 13, 2015. The address of FMR is 245 Summer Street, Boston, Massachusetts 02210. Pursuant to the Schedule 13G, FMR has sole voting power over 225,042 shares and sole dispositive power over 3,766,733 shares. Edward C. Johnson 3d is a Director and the Chairman of FMR LLC and Abigail P. Johnson is a Director, the Vice Chairman, the Chief Executive Officer and the President of FMR LLC. Members of the family of Edward C. Johnson 3d, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders’ voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC. Neither FMR LLC nor Edward C. Johnson 3d nor Abigail P. Johnson has the sole power to vote or direct the voting of the shares owned directly by the various investment companies registered under the Investment Company Act (“Fidelity Funds”) advised by Fidelity Management & Research Company (“FMR Co”), a wholly owned subsidiary of FMR LLC, which power resides with the Fidelity Funds’ Boards of Trustees. Fidelity Management & Research Company carries out the voting of the shares under written guidelines established by the Fidelity Funds’ Boards of Trustees.
|
(6)
|
This information is based upon a Schedule 13G filed by Robert S. Pitts, Jr., Steadfast Capital Management LP (“Steadfast Management”), Steadfast Advisors LP (“Steadfast Advisors”), Steadfast Capital, L.P. (“Steadfast Capital”), American Steadfast, L.P. (“American Steadfast”), and Steadfast International Master Fund Ltd. (the “Offshore Fund”) (collectively, the “Steadfast Affiliates”) with the SEC on February 17, 2015. Mr. Pitts (beneficial owner of 3,334,462 ordinary shares) is the managing member of Steadfast Management (beneficial owner of 3,197,708 ordinary shares) and Steadfast Advisors (beneficial owner of 136,754 ordinary shares). Steadfast Advisors has the power to vote and dispose of the securities held by Steadfast Capital (beneficial owner of 136,754 ordinary shares). Steadfast Management has the power to vote and dispose of the securities held by American Steadfast (beneficial owner of 1,176,678 ordinary shares) and the Offshore Fund (beneficial owner of 2,021,030 ordinary shares). The Offshore Fund lists its address as c/o Appleby Trust (Cayman) Ltd., Clifton House, 75 Fort Street, P.O. Box 1350, George Town, Grand Cayman KY1-1108. The other Steadfast Affiliates list their address as 450 Park Avenue, 20th Floor, New York, New York 10022.
|
(7)
|
Consists of (i) 9,095,640 Ordinary Shares directly or beneficially owned by Wix’s directors and executive officers; and (ii) 2,448,948 Ordinary Shares constituting the cumulative aggregate number of options and restricted share units granted to the executive officers and directors which will have vested prior to October 12, 2015 and have not been exercised as of August 13, 2015. The numbers include also the shares held by entities affiliated with Mangrove Capital Partners which Mr. Tluszcz may be deemed to share voting and dispositive power.
|
|
·
|
the Class I directors are Adam Fisher and Erika Rottenberg, and their terms expire at our annual meeting of shareholders to be held in 2017;
|
|
·
|
the Class II directors are Yuval Cohen and Roy Saar, and their terms expire at the Meeting; and
|
|
·
|
the Class III directors are Avishai Abrahami, Giora Kaplan and Mark Tluszcz, and their terms expire at our annual meeting of shareholders to be held in 2016.
|
2013
|
2014
|
|||||||
(in thousands)
|
||||||||
Audit fees (1)
|
$ |
745
|
$ |
416
|
||||
Audit-related fees (2)
|
6
|
42
|
||||||
Tax fees
|
24
|
87
|
||||||
Total
|
$ |
775
|
$ |
545
|
______________
|
|
(1)
|
“Audit fees” are the aggregate fees paid for the audit of our annual financial statements. This category also includes services that generally the independent accountant provides, such as consents and assistance with and review of documents filed with the SEC.
|
(2)
|
“Audit-related fees” are the aggregate fees paid for assurance and related services that are reasonably related to the performance of the audit and are not reported under audit fees. These fees primarily include accounting consultations regarding the accounting treatment of matters that occur in the regular course of business, implications of new accounting pronouncements and other accounting issues that occur from time to time.
|
By Order of the Board of Directors,
AVISHAI ABRAHAMI
Chairman of the Board of Directors
|
WHEREAS,
|
Indemnitee is an office holder (
nose misra
) (an “
Office Holder
”), as such term is defined in the Companies Law, 5759–1999 (the
“
Companies Law
”);
|
WHEREAS,
|
both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against Office Holders of companies and that highly competent persons have become more reluctant to serve corporations as directors and officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against risks of claims and actions against them arising out of their service to, and activities on behalf of, companies;
|
WHEREAS
,
|
the Articles of Association of the Company authorize the Company to indemnify and advance expenses to its Office Holders and provide for insurance and exculpation to its Office Holders, in each case, to the fullest extent permitted by applicable law;
|
WHEREAS,
|
the Company has determined that (i) the increased difficulty in attracting and retaining highly competent persons, such as Indemnitee, is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future, and (ii) it is reasonable, prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
|
WHEREAS,
|
in recognition of Indemnitee's need for substantial protection against personal liability in order to assure Indemnitee’s continued service to the Company in an effective manner and, in part, in order to provide Indemnitee with specific contractual assurance that the indemnification, insurance and exculpation afforded by the Articles of Association will be available to Indemnitee, the Company wishes to undertake in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent permitted by applicable law and as set forth in this Agreement, and provide for insurance and exculpation of Indemnitee as set forth in this Agreement; and
|
WHEREAS,
|
the
Indemnitee may have other rights of indemnification and/or insurance provided by third parties which the Indemnitee intends to be secondary to the primary obligation of the Company to indemnify the Indemnitee and to the insurance policy of the Company as provided herein, with the Company’s acknowledgement and agreement to the foregoing being a material condition to Indemnitees' willingness to serve as an Office Holder of the Company.
|
1.
|
INDEMNIFICATION AND INSURANCE.
|
|
1.1.
|
The Company agrees to indemnify and hold harmless Indemnitee to the fullest extent permitted by applicable law for any liability and expense specified in Sections 1.1.1 through 1.1.5 below, imposed on Indemnitee due to or in connection with an act performed by Indemnitee, either prior to or after the date hereof, in Indemnitee’s capacity as an Office Holder of the Company, any subsidiary thereof or any other corporation, collaboration, partnership, joint venture, trust or other enterprise, in which Indemnitee serves at any time at the request of the Company (the “
Corporate Capacity
”). The term “act performed in Indemnitee’s capacity as an Office Holder” shall include, without limitation, any act or omission and any other circumstances relating to or arising from Indemnitee’s service in a Corporate Capacity. Notwithstanding the foregoing, in the event that the Office Holder is the beneficiary of an indemnification undertaking provided by a subsidiary of the Company or any other entity (other than a Secondary Indemnitor (as defined below)), with respect to Indemnitee’s Corporate Capacity with such subsidiary or entity, then the indemnification obligations of the Company hereunder with respect to such Corporate Capacity shall only apply to the extent that the indemnification by such subsidiary or other entity does not actually fully cover the indemnifiable liabilities and expenses relating thereto. The following shall be hereinafter referred to as “
Indemnifiable Events
”:
|
|
1.1.1.
|
Any financial liability imposed on Indemnitee or incurred by Indemnitee in favor of another person by a court judgment, including a compromise judgment or an arbitrator’s award approved by court. For purposes of Section 1 of this Agreement, the term “
person
” shall mean a natural person, firm, partnership, joint venture, trust, company, corporation, limited liability entity, unincorporated organization, estate, government, municipality, or any political, governmental, regulatory or similar agency or body;
|
|
1.1.2.
|
Reasonable litigation Expenses (as defined below), including, without limitation, attorney’s fees and the fees and expenses of investigators, accountants and other experts, incurred by Indemnitee or charged to Indemnitee by court, (i) in a proceeding instituted against Indemnitee by the Company or on its behalf or by another person
on the Company’s behalf
; or (ii) in any criminal proceeding in which Indemnitee is acquitted; or (iii) in any criminal proceeding in which Indemnitee is convicted of an offense that does not require proof of criminal intent;
|
|
1.1.3.
|
Reasonable litigation Expenses, including, without limitation, attorney’s fees and the fees and expenses of investigators, accountants and other experts, incurred by Indemnitee as a result of an investigation or proceeding instituted against Indemnitee by an authority authorized to conduct such investigation or proceeding, which: (i) is Concluded Without The Filing of An Indictment (as defined below) against Indemnitee and without the imposition on Indemnitee of any Financial Obligation In Lieu of Criminal Proceedings (as defined below), or (ii) which is Concluded Without The Filing Of An Indictment against Indemnitee, but with the imposition on Indemnitee of a Financial Obligation In Lieu of Criminal Proceedings in respect of an offense that does not require proof of criminal intent or in connection with a financial sanction; and
|
|
1.1.4.
|
Any financial obligation imposed upon Indemnitee and reasonable litigation Expenses, including, without limitation, reasonable attorney’s fees, incurred by Indemnitee as a result of an Administrative Proceeding (as defined below) instituted against Indemnitee. Without derogating from the generality of the foregoing, such obligation or expense will include a payment that Indemnitee is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Securities Law, 5728-1968 (the “
Securities Law
”) and
E
e
xpenses that Indemnitee incurred in connection with a proceeding under Chapters H’3, H’4 or I’1of the Securities Law, including reasonable legal
E
e
xpenses, which term includes attorney’s fees.
|
|
1.1.5.
|
Any other event, occurrence or circumstances for which the Company may lawfully indemnify an Office Holder or shareholder of the Company.
|
|
1.1.6.
|
For purposes of this Section 1.1:
|
|
1.1.6.1.
|
The term “
Concluded Without The Filing of An Indictment
” regarding a matter in which a criminal proceeding was initiated, means the closing of a file pursuant to Section 62 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (the “
Criminal Procedure Law
”) or a stay of process by the Attorney General pursuant to Section 231 of the Criminal Procedure Law; and
|
|
1.1.6.2.
|
a “
Financial Obligation Imposed in Lieu of a Criminal Proceeding
” means a financial obligation imposed by law as an alternative to a criminal proceeding, including an administrative fine pursuant to the Administrative Offenses Law, 5746-1985, a fine for committing an offense categorized as a finable offense pursuant to the provisions of the Criminal Procedure Law or a penalty.
|
|
1.1.6.3.
|
The term “
Administrative Proceeding
” shall mean a proceeding pursuant to Chapter H’3 (Imposition of Financial Sanctions by the Securities Authority), H’4 (Imposition of Administrative Enforcement Measures by the administrative Enforcement Committee) or I’1 (Arrangement to Prevent the Initiation of Proceedings or to Conclude Proceedings, Subject to Conditions) of the Securities Law.
|
|
1.2.
|
Notwithstanding anything herein to the contrary, the Company shall indemnify Indemnitee under Section 1.1 only with respect to the events described in
Exhibit A
(attached). The Board has determined that the events listed in Exhibit A are reasonably foreseeable in light of the operations of the Company.
|
|
1.3.
|
If so requested by Indemnitee, and subject to the Company’s reimbursement right set forth in Section
5
below, the Company shall advance amounts to cover Indemnitee’s Expenses for which Indemnitee is entitled to be indemnified under Section
1.1
above, as and when incurred. The advances to be made hereunder shall be paid by the Company directly to Indemnitee’s legal and other advisors as soon as practicable, but in any event no later than fifteen (15) days after the Company receives a written demand from Indemnitee. As part of the aforementioned undertaking, the Company will make available to Indemnitee any security or guarantee that Indemnitee may be required to post in accordance with an interim decision given by a court, governmental or administrative body, or an arbitrator, including for the purpose of substituting liens imposed on Indemnitee’s assets.
|
|
1.4.
|
Subject to the limitations set forth in Section 1.1 and 1.2 above and in Section 2, the Company agrees to indemnify and hold harmless Indemnitee for and, if requested by Indemnitee, advance to Indemnitee (i) any and all Expenses actually and reasonably paid or incurred by Indemnitee in connection with any claim by Indemnitee for indemnification by the Company under any provision of this Agreement, or under any other agreement or insurance policy or applicable law, and/or (ii) any and all Expenses actually and reasonably paid or incurred by Indemnitee in connection with any claim by the Company or any other person to enforce their respective rights under any provision of this Agreement, or under any other agreement or insurance policy or applicable law. Subject to the limitations set forth in Section 1.1 and 1.2 above and in Section 2, no indemnity shall be paid by the Company under this section if there has been a finding, to which all rights of appeal have either lapsed or been exhausted, that each of the material assertions or defenses, as the case may be, made by Indemnitee in connection with such claim was frivolous or not made in good faith.
|
|
1.5.
|
The Company’s obligation to indemnify Indemnitee and advance Expenses in accordance with this Agreement shall be for such period (the “
Indemnification Period
”) as Indemnitee shall be subject to any actual, possible or threatened claim, action, suit, demand or proceeding or any inquiry or investigation, whether civil, criminal or investigative, arising out of Indemnitee’s service in the Corporate Capacity as described in Section
1.1
above, whether or not Indemnitee is still serving in such position.
|
|
1.6.
|
Indemnitee shall be covered by the insurance policy or policies providing liability insurance for directors and officers of the Company, in accordance with its or their terms to the maximum extent of the coverage available for any director or officer under such policy or policies.
|
|
1.7.
|
The Company undertakes to give prompt written notice of the commencement of any claim hereunder to its insurers in accordance with the procedures set forth in each of the policies. The Company shall thereafter diligently take all actions reasonably necessary under the circumstances to cause such insurers to pay, on behalf of each Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or investigation in accordance with the terms of such policies. The above shall not derogate from Company’s authority to freely negotiate or reach any compromise with the insurer that is reasonable at the Company’s sole discretion provided that the Company shall act in good faith and in a diligent manner.
|
2.
|
SPECIFIC LIMITATIONS ON INDEMNIFICATION.
|
|
2.1.
|
Notwithstanding anything to the contrary in this Agreement, the Company shall not indemnify or advance Expenses to Indemnitee with respect to (i) any act, event or circumstance for which it is prohibited to do so under the Companies Law; or (ii) a counter claim made by the Company or in its name in connection with a claim against the Company filed by Indemnitee, other than: (a) by way of defense or by way of third party notice in connection with a claim brought against Indemnitee, or (b) in specific cases in which the Board has approved the initiation or bringing of such claim by Indemnitee, or (iii) any claim arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), or any similar applicable law of any jurisdiction
, if Indemnitee is held liable therefor after a final adjudication to which all rights of appeal have either lapsed or been exhausted
.
|
|
2.2.
|
Notwithstanding the above, for as long as it is prohibited under the applicable laws, the Company shall not indemnify or advance Expenses to Indemnitee in respect of Indemnitee's financial liability,
which may be incurred by Indemnitee with respectto
where there has been a finding in a final adjudication, to which all rights of appeal have either lapsed or been exhausted, that there has been
: (i) a breach of a duty of loyalty
by Indemnitee
, except to the extent that Indemnitee acted in good faith and had a reasonable basis to believe that the act would not prejudice the Company, (ii) a breach of
the
duty of care committed intentionally or recklessly
by Indemnitee
, excluding a breach arising out of the negligent conduct of Indemnitee, (iii) an act or omission committed
by Indemnitee
with the intent to derive illegal personal benefit, (iv) a fine or forfeit levied against Indemnitee, or (v)
a liability by the Indemnitee in
(
where there is
a
ny
claim arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), or any similar applicable law of any jurisdiction.
|
|
2.3.
|
Without derogating from the above, the Company shall enter into an agreement to insure Indemnitee for any liability that may be imposed on Indemnitee in connection with an act (or an omission) performed by Indemnitee in a Corporate Capacity as permitted according to the Companies Law.
|
3.
|
ADVANCEMENT OF EXPENSES.
|
|
3.1.
|
In the event that the Company provides indemnification or advancement of Expenses under Section
s
1
.1.2 and/or 1.1.3
above, and thereafter, in respect of the same act, event or circumstance for which such indemnification or advance of Expenses under Section
s 1.1.2 and/or
1
.1.3
was provided to Indemnitee: (i) a financial obligation in lieu of a criminal proceeding for an offense that requires proof of
mens rea
is imposed on Indemnitee; and/or (ii) Indemnitee is convicted of an offense that requires
mens rea
, as applicable,
and/or (iii) there has been a finding in a final adjudication, to which allrights of appeal have either lapsed or been exhausted, that Indenitee was not entitled tosuch indemnification or advancement of Expenses pursuant to the Agreement,
then, within sixty (60) days of receipt of a written demand by the Company to such effect, Indemnitee shall repay to the Company all amounts previously paid by the Company as indemnification or advancement of Expenses in respect of such act, event or circumstance.
|
|
3.2.
|
Indemnitee’s obligation to reimburse the Company for any advanced Expenses or other sums paid hereunder shall be deemed a loan given to Indemnitee by the Company.
|
4.
|
SUBROGATION.
|
|
4.1.
|
Except as set forth in Section
4.2 below, in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all documents required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
|
|
4.2.
|
The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by third parties (other than subsidiaries of the Company or any party that is an affiliate of the Company (collectively, the “
Secondary Indemnitors
”)). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Articles of Association of the Company (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Secondary Indemnitors, and, (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Secondary Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Secondary Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Secondary Indemnitors are express third party beneficiaries of the terms of this Section
4.2.
|
5.
|
REIMBURSEMENT.
|
6.
|
EFFECTIVENESS.
|
7.
|
NOTIFICATION AND DEFENSE OF CLAIM.
|
|
7.1.
|
The Company will be entitled to participate therein at its own expense.
|
|
7.2.
|
Except as otherwise provided below, the Company, alone or jointly with any other indemnifying party similarly notified, will be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to Indemnitee. Indemnitee shall have the right to employ Indemnitee’s own counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at Indemnitee’s expense, unless: (i) the employment of counsel by Indemnitee has been authorized in writing by the Company; (ii) Indemnitee and the Company
shall have concluded, or independent counsel who is reasonably reputable with experience in the relevant field has opined in writing, that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such action; or (iii) the Company has not in fact employed counsel to assume the defense of such action, in which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which
Indemnitee shall have reached the conclusion specified in (ii) above.
|
|
7.3.
|
The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts or expenses paid in connection with a settlement of any action, claim or otherwise, effected without the Company’s prior written consent.
|
|
7.4.
|
The Company shall have the right to conduct the defense as it sees fit in its sole discretion (provided that the Company shall conduct the defense in good faith and in a diligent manner), including the right to settle or compromise any claim or to consent to the entry of any judgment against Indemnitee without the consent of Indemnitee, provided that, the amount of such settlement, compromise or judgment does not exceed the Limit Amount (if applicable) and is fully indemnifiable pursuant to this Agreement (subject to Section 1.2) and/or applicable law, and any such settlement, compromise or judgment does not impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Indemnitee’s consent shall not be required if the settlement includes a complete release of Indemnitee, does not contain any admission of wrong-doing by Indemnitee, and includes monetary sanctions only as provided above. In the case of criminal proceedings the Company and/or its legal counsel will not have the right to plead guilty or agree to a plea-bargain in Indemnitee’s name without Indemnitee’s prior written consent.
|
|
7.5.
|
Indemnitee shall fully cooperate with the Company and shall give the Company all information and access to documents, files and to their advisors and representatives as shall be within Indemnitee' power, in every reasonable way as may be required by the Company with respect to any claim which is the subject matter of this Agreement and in the defense of other claims asserted against the Company (other than claims asserted by Indemnitee), provided that the Company shall cover all expenses, costs and fees incidental thereto such that Indemnitee will not be required to pay or bear such expenses, costs and fees.
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8.
|
EXEMPTION AND EXCULPATION.
|
9.
|
NON-EXCLUSIVITY.
|
10.
|
PARTIAL INDEMNIFICATION.
|
11.
|
POST FACTUM INDEMNIFICATION
.
|
12.
|
INCREASE IN AMOUNT OF INDEMNIFICATION
.
|
13.
|
COMPANY UNDERTAKINGS
.
|
14.
|
ENFORCEMENT.
|
15.
|
BINDING EFFECT.
|
16.
|
SEVERABILITY.
|
17.
|
NOTICE.
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18.
|
GOVERNING LAW; JURISDICTION.
|
19.
|
ENTIRE AGREEMENT AND TERMINATION.
|
20.
|
COUNTERPARTS.
|
21.
|
NO MODIFICATION AND NO WAIVER.
|
Wix.com Ltd.
|
||
By:
|
||
Name and title:
|
Indemnitee
|
||
Name:
|
|
|
Signature:
|
INDEMNIFIABLE EVENTS
|
|
1.
|
Claims in connection with employment relationships with employees of the Company, including in connection with pension arrangements, insurance and saving funds, options and other employment related benefits, and in connection with business relations between the Company and its employees, independent contractors, customers, suppliers and other service providers.
|
2.
|
Negotiations, execution, delivery and performance of agreements of any kind or nature, anti-competitive acts, acts of commercial wrongdoing, approval of corporate actions including the approval of the acts of the Company’s management, their guidance and their supervision, actions concerning the approval of transactions with Office Holders or shareholders, including controlling persons and claims of failure to exercise business judgment and a reasonable level of proficiency, expertise and care with respect to the Company’s business.
|
3.
|
Violation
, infringement or any other misuse
of copyrights, patents, designs, trade secrets and any other intellectual property rights, breach of confidentiality obligations, acts in regard of invasion of privacy including with respect to databases, acts in connection with slander and defamation, and claims in connection with publishing, hosting, or providing any, data, content or information, including any filings with any governmental authorities, whether or not required under any applicable laws.
|
4.
|
Any claim or demand in connection with: (a) cyberattacks on the Company and/or its subsidiaries and/or any of their computer network or system products and services, including without limitation, use of malicious code to alter computer code, logic or data, information and identity theft, Malware, pharming, phishing, spamming, spoofing, spyware, trojans and viruses, denial-of-service and distributed denial-of-service attacks; and (b) breaches of data, including, without limitation, any event in which sensitive, protected or confidential data, whether relating to the Company, any of its subsidiaries, their custimers, users, vendors or any other person or entity, has potentially been viewed, stolen or used by an individual unauthorized to do so.
|
5.
|
Violations of securities laws of any jurisdiction, including, without limitation, fraudulent disclosure claims, failure to comply with any securities authority or any stock exchange disclosure or other rules and any other claims relating to relationships with investors, debt holders, shareholders and the investment community; claims relating to or arising out of financing arrangements, any breach of financial covenants or other obligations towards lenders or debt holders of the Company, class actions, violations of laws requiring the Company to obtain regulatory and governmental licenses, permits and authorizations in any jurisdiction; actions taken in connection with the issuance of any type of securities of Company, including, without limitation, the grant of options to purchase any of the same.
|
6.
|
Liabilities arising in connection with any products or services developed, distributed, sold, provided, licensed or marketed by the Company, and any actions in connection with the distribution, sale, license or use of such products.
|
7.
|
The issue of securities (including an issue of securities that does not come to actual fruition) in Israel and abroad, including and without derogating from the generality of the foregoing, an offer of securities to the public pursuant to a prospectus, a private placement, sale offer, issue of bonus shares or offer of securities in any other way, including, but without limitation, a prospectus or registration statement for an initial public offering including public offerings in NYSE, NYSE MKT and NASDAQ.
|
8.
|
An event arising from the fact of the Company being a publicly traded company or arising from the fact that the shares of the Company are traded on a stock exchange in the US or abroad.
|
9.
|
Events in connection with an actual or proposed change in ownership or in the structure of the Company, its reorganization, dissolution, or any decision concerning any of the foregoing, including but not limited to, merger, sale or acquisition of assets, division, change in capital.
|
10.
|
Any claim or demand made in connection with any transaction not in the ordinary course of business of the Company, including the sale, lease or purchase of any assets or business, receiving and granting credit and the giving or receiving of collateral security, including contracting under finance agreements with banks and/or other financial entities for purposes of financing transactions or contractual arrangements, including a transaction with an interested party.
|
11.
|
Any claim or demand made by any third party suffering any personal injury and/or bodily injury or damage to business or personal property or any other type of damage through any act or omission attributed to the Company, or its employees, agents or other persons acting or allegedly acting on its behalf.
|
12.
|
Any claim or demand made directly or indirectly in connection with complete or partial failure, by the Company or its directors, officers and employees, to pay, report, keep applicable records or otherwise, of any foreign, federal, state, county, local, municipal or city taxes or other compulsory payments of any nature whatsoever, including, without limitation, income, sales, use, transfer, excise, value added, registration, severance, stamp, occupation, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll or employee withholding or other withholding, including any interest, penalty or addition thereto, whether disputed or not.
|
13.
|
Any administrative, regulatory or judicial actions, orders, decrees, suits, demands, demand letters, directives, claims, liens, investigations, proceedings or notices of noncompliance or violation by any governmental entity or other person alleging the failure to comply with any statute, law, ordinance, rule, regulation, order or decree of any governmental entity applicable to the Company or any of its businesses, assets or operations, or the terms and conditions of any operating certificate or licensing agreement.
|
14.
|
A report or notice lodged according to the Companies Law or the Securities Law, including regulations made pursuant thereto, or according to rules or directives currently applied by on a Stock Exchange in Israel or abroad, or according to a law of another country which regulates similar matters and/or the failure to submit such report or notice.
|
15.
|
Participation and/or non-participation at the Company’s Board meetings, bona fide expression of opinion and/or voting and/or abstention from voting at the Company’s Board meetings.
|
16.
|
Any act or a derivative thereof connected with the adopting of financial reporting according to international financial reporting standards (IFRS) and accepted accounting principles in the USA (US GAAP) or any financial reporting standards practiced by the Company or its subsidiaries, including, without limitations, execution of certificates for the benefit of third parties related to the financial statements.
|
17.
|
All actions, consents and approvals relating to a distribution of dividends, in cash or otherwise.
|
18.
|
Actions taken pursuant to or in accordance with policies and procedures of the Company (including tax policies and procedures), whether such policies and procedures are published or not.
|
19.
|
An act or a derivative thereof that is contrary to the Company's Articles of Association.
|
20.
|
Implementing of a tender offer and/or a sale offer and any proceeding, opinion, document and/or report in connection therewith.
|
21.
|
Any claim and/or demand in relation to non-disclosure or failure to supply any sort of information at the time required according to law and/or in connection with a misleading or faulty disclosure of such information, to third parties, and included in this to the holders of the Company’s securities and/or potential holders of securities, including in regard to a public offering, allotment, distribution, purchase, holding and/or connection with securities of the Company and/or any other investment activity involving and/or affecting the Company’s securities.
|
22.
|
Resolutions and/or actions relating to environmental matters.
|
23.
|
Resolutions and/or actions in connection with the approval of financial statements of the Company or its subsidiaries.
|
24.
|
Representations and warranties made in good faith in connection with the business of the Company or its subsidiaries.
|
25.
|
Resolutions and/or actions in connection with any restrictive trade practice or monopolies of the Company or its subsidiaries.
|
26.
|
Resolutions and/or actions relating to the operations and management of the Company or its subsidiaries.
|
27.
|
Resolutions and/or actions in connection with a subsidiary or a company affiliated with the Company.
|
*
|
Any reference in this Exhibit A to the Company shall include the Company and any entity in which Indemnitee serves in a Corporate Capacity.
|
|
|
Signature of shareholder
|
Date
|
Signature of shareholder
|
Date
|
Note:
|
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each owner should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by a duly authorized officer, giving full title as such. If the signer is a partnership, please sign in partnership name by authorized person.
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